Citation Numbers: 120 Misc. 2d 524
Judges: Pizzuto
Filed Date: 7/15/1983
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
In this motion, petitioner Joseph Ryan is seeking an order pursuant to CPLR 3103 (subd [c]) suppressing a certain statement of petitioner dated July 4, 1975 and directing the respondents Manhattan and Bronx Surface Transit Operating. Authority and the New York City
BACKGROUND
Petitioner is a former employee of Manhattan and Bronx Surface Transit Operating Authority (hereinafter referred to as MABSTOA). On July 3,1975, petitioner, along with a coemployee Sean Tierney, was arrested for possessing approximately $1,600 in coins which were stolen from MABSTOA. During the evening hours of July 3 and the early morning hours of July 4, 1975, petitioner was questioned by various members of the police and the Bronx District Attorney’s office. At some point, the petitioner’s attorney Elliot Fixler arrived and participated in the discussion. As a result of these conversations, the petitioner made a stenographically recorded statement in the presence of his attorney. In that statement, it was agreed that in return for his co-operation with regard to the investigation into the thefts from bus fareboxes, he would be granted immunity from prosecution. Thereupon petitioner recounted numerous details and responded to various inquiries concerning his involvement in the farebox scam. It is this stenographic statement which is sought to be suppressed by the petitioner.
Several days after making the aforesaid statement, petitioner was fired from his position with MABSTOA.
On February 17,1977, a hearing was held before Justice Silbermann as to the admissibility of the stenographic
Sometime in 1980, petitioner moved in Supreme Court, Bronx County, for an order pursuant to CPL 240.10 (subd 2) and 710.70 directing the respondent herein to return the stenographic statement.
COLLATERAL ESTOPPEL
Respondents argue that inasmuch as they were made parties to the 1981 motion, the petitioner should be collaterally estopped from raising the identical relief in the present motion before the court. Collateral estoppel or issue preclusion operates to preclude relitigation of discrete issues of law and fact determined or necessarily determined in a prior action or proceeding, and may arise where the parties are the same and one is barred from relitigating an issue which was adjudicated in the prior action or where the parties are not the same but nonetheless one of the parties to the subsequent action is foreclosed from relitigating an issue which was determined in the first action. (Matter of American Ins. Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184, 189, n 2; Brown v Lockwood, 76 AD2d 721, 735.) Although it is clear that the parties herein are identical to the parties who were before Justice Silverman in 1981, it is not entirely clear whether there exists an identity of issue between these two proceedings.
More specifically, for the doctrine of issue preclusion to apply it is required that the issue as to which preclusion is sought be identical with the issue decided in the prior proceeding. In other words, it is essential that the issue has been necessarily decided in the prior proceeding and that the litigant who will be held precluded in the present proceeding have had a full and fair opportunity to litigate
“That prior to this motion, the defendant has had his fingerprints and photographs returned, pursuant to Section 160.50 of the Criminal Procedure Law. Copies of these documents are annexed hereto. However, the statements taken by the Assistant District Attorney, has not been sealed in light of Section 160.50, and, in light of the suppression motion entered by Justice Silverman.
“In fact, mabstoa and the new york city transit authority, are in possession of said statements. It is your affirmants position, that the Bronx District Attorney’s Office, order that the original, and all copies of said statements be returned forthwith, pursuant to Section 160.50 of the Criminal Procedure Law. Unquestionably, the statute requires the Court to enter such an order.”
As noted previously, the respondents herein, when they opposed the prior motion, argued that the petitioner’s statement does not fall within the definition of official records and papers as contained in CPL 160.50 (subd 1, par [c]) or within the ambit of returnable items as contained in CPL 160.50 (subd 1, par [a]).
In point of fact the Appellate Division, Second Department, has recently held that a statement given by a defendant in a criminal action to the District Attorney is not protected under the provisions of CPL 160.50 (Matter of Anonymous, 95 AD2d 763). In that case, the petitioner Grievance Committee for the Second and Eleventh Judicial Districts sought to obtain a taped confession of respondent after his conviction was reversed and the indictment dismissed. In granting that petitioner’s relief the appellate court declared (p 764) “[b]ut more significantly, there is no need for us to exercise such power [i.e., unseal the record]
THE SUPPRESSION ISSUE
Reaching the merits of this motion, this court must determine whether or not the stenographic statement should be suppressed from the pending reinstatement hearing due to the dismissal of petitioner’s criminal case. In this respect, petitioner argues that:
“It is respectfully submitted that such statements were either obtained in violation of Judge Silbermann’s Order or, if obtained prior to the Order, were improperly retained in violation of that Order. Certainly, the import of Justice Silbermann’s Order would be reduced to a nullity, should the aforesaid individuals be permitted to retain duplicate copies of the subject statement.
“My attorney has advised me, and I submit to this Court that New York Law, particularly CPLR Section 3103(c) authorizes this Court to order that the statement be suppressed, since it has been improperly or irregularly obtained or retained, thus relating in substantial prejudice to me.”
Although petitioner harps upon the fact that this statement was suppressed in the prior criminal proceeding, this court is not convinced that this is a correct statement of the facts.
In applying this rule courts have held that “ ‘it would seem that there is no valid basis for different rules of admissibility of illegally obtained evidence in criminal and civil litigation; evidence obtained by search and seizure in violation of the Constitution should be excluded in both types of actions’ ” (Irizarry v City of New York, 79 Misc 2d 346, 351). Accordingly, illegally obtained evidence has been suppressed in forfeiture proceedings (Plymouth Sedan v Pennsylvania, 380 US 693), replevin actions (Dwyer v County of Nassau, 66 Misc 2d 1039; Chmielewski v Rosetti, 59 Misc 2d 335), and civil proceedings (Irizarry v City of New York, supra; Terpstra v Niagara Fire Ins. Co., 26 NY2d 70). However, the common thread running throughout these cases is an illegal or unconstitutional search or seizure in the first instance. What appears lacking in this case is some illegality that would taint the stenographic statement made by the petitioner herein. Although petitioner alleges that, “at the time, due to the extreme coercion, stress and strain to which I was subjected, I was forced to make a statement before a stenographer”, that does not necessarily constitute a constitutional illegality.
The evidence clearly indicates that the statement was made by petitioner in the presence of his prior attorney, Elliot Fixler. Any attack therefore against the legality of this statement on the grounds that it violated the mandate
Furthermore, none of the cases cited by the petitioner removes this initial requirement of having illegally seized evidence. Thus, in Monserrate v Upper Ct. St. Book Store (49 NY2d 306), the illegally obtained evidence was obscene books seized under an invalid search warrant. Again, in McCormick v County of Suffolk (53 AD2d 690), the illegally obtained evidence was blood taken from a person unconscious in the emergency room of a hospital. Finally, in Herndon v City of Ithaca (43 AD2d 634), the illegally obtained evidence was $4.75 in quarters and nickels taken from the trousers of that plaintiff after he was shot and while he was in the hospital. The distinguishing feature between these cases and the situation at bar is not the nature of the evidence that was initially seized. Thus, it makes no difference that these cases involve a seizing of “physical evidence” in violation of the Fourth Amendment, whereas in petitioner’s case, a “statement” was obtained allegedly in violation of the Fifth Amendment. In either case, evidence that has been illegally seized may not be used affirmatively by the government in a subsequent civil action against the person from whom such evidence was obtained.
What is lacking in this case, however, is an “illegally obtained statement.” Notwithstanding the tantalizing adjectives used by petitioner to describe the uttering of the statement in question, this court does not concur with the allegation that this statement was illegally obtained. As stated above, there is no evidence that this statement was specifically suppressed by the Bronx Supreme Court or that it would be subject to a successful attack for violating the petitioner’s Fifth or Sixth Amendment rights. Accordingly, even though the petitioner has followed the correct procedure, by moving pursuant to CPLR 3103 (subd [c]) for
Alternatively, the relief requested herein must also be denied on the basis of Herndon v City of Ithaca (supra). In that case, the Appellate Division, Third Department, affirmed a jury verdict which found no cause of action against the defendant. As part of the defense case, the City of Ithaca was allowed to introduce $4.75 in change obtained as a result of an illegal search of the plaintiff’s clothing (43 AD2d, supra, at p 635). That court went on to hold (p 636) that, “ Tt is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.’ ”
Since the court finds the statement of July 4, 1975 is not tainted by any illegality, and that even if it was, it may still be considered at the reinstatement hearing, the motion by the petitioner for an order pursuant to CPLR 3103 (subd [c]) suppressing this statement and directing the respondents to return all copies thereof to the petitioner, is in all respects denied.
. Although petitioner alleges that in return for making his statement, he was assured that his co-operation would insure retaining his employment at MABSTOA, there is nothing in the stenographic statement to this effect.
. This was a closed hearing, the minutes of which were ordered to be sealed. Other than an oral decision there was no writing memorializing Justice Silbermann’s decision. This court has ascertained that the sealed minutes of this hearing cannot be found.
. Refers to former CPL 240.10 (subd 2) which was repealed by chapter 412 of the Laws of 1979.
. That court, citing Matter of Finn’s Liq. Shop v State Liq. Auth. (24 NY2d 647) and
. Notwithstanding the decision of Justice Cohen on March 24,1980 which referred to “any suppressed statement”, it is not clear that the court specifically made a finding that the stenographic statement had indeed been suppressed.
. The fact that this petitioner in fact argued this precise point, i.e., that he had been granted immunity, makes this scenario that much more likely.
. The certificate of disposition relied on by petitioner merely states that “on 2/17/77 the indictment against the above named defendant was dismissed by the Honorable Silbermann, a Justice of the Supreme Court.”
. Insofar as the petitioner in his memorandum of law argues that Herndon v City of Ithaca (43 AD2d 634), stands for the proposition that: “The Court concludes that, while the person making the statement which is later suppressed may be faced with that statement, should he choose to later perjure himself, such statement may not be used as evidence in chief against him, where he has not opened the door by testifying contrary to the contents of the suppressed statement”, he is mistaken, since that proposition is from the dissenting opinion by Justice Cooke.